Thursday, 9 April 2015

T 0972/13 - Costly absence

The decision is in German. Here first a short part is roughly translated into English.The appellant does not turn up at oral proceedings, having announced before 'not to be represented'. Since this left open that the appellant would turn up himself, the responded had to prepare the case an turn up.This contributed to costs being awarded to the respondent.

The
appellant (patentee) has appealed against the decision of the Opposition
Division, in which the European patent no. 1,127,712 had been revoked. The appellant
and respondent II (Opponent 2) had requested oral proceedings.In the
summons to the oral proceedings, the Board gives its preliminary opinion that the
appeal of appellant is inadmissible. According to the Board the appeal boils
down to the mere assertion that the contested decision is not right, without
mentioning the legal or factual reasons why the decision should be repealed.
This leaves it to the Board and Respondent to speculate about the extent to
which appellant could view the contested decision to be defective. This is
exactly what the filing of a statement of grounds should prevent.By letter,
the appellant had announced that they would not be represented at the oral
proceedings. But such an announcement leaves open the question whether the
complainant would not actually be present. In exercising its responsibility for
the duty of care to their client, the representative of the Respondent II was
therefore forced to prepare and be present at the hearing for the simple reason
that the appellant might still turn up.Reasons for
the Decision1.
AdmissibilityThe
appellant has not responded to the preliminary opinion of the Board an did not
participate in the oral proceedings.Even after
a review of their preliminary opinion, the Board sees no reason to deviate from
it. Since the statement of grounds does not state the legal nor the factual
grounds for overturning the decision, it does not meet the requirements of Rule
99 (2) EPC and is in accordance with Rule 101 (1) EPC to be rejected as
inadmissible.2. Request
for ReimbursementAccording
to Article 104 (1) EPC in opposition proceedings each party bears their won
costs. This is also true in opposition appeal proceedings. However,
reimbursement would be considered, if it is equitable. This is the case where a
party has been lacking in the necessary care and consideration in the process
procedure and therefore has caused the other party costs that could easily have
been avoided without compromising their own legal position.By letter
dated 12 December 2014, the appellant complainant has announced that they would
not be represented at the hearing on 28 January 2015. Such announcement leaves
open, however, whether the complainant herself will actually be present or
holds open still to appear.In
exercising its responsibility for the duty of care to their client the
representatives of the Respondent II have been thus forced to prepare and to be
present at the hearing, to avoid the case that the appellant would still occur.To prevent
this, the appellant would have been able to withdraw their request for oral
proceedings without further ado, what she did not do.Thus, it is
equitable that the appellant bears the costs of respondent II incurred by participating in the hearing (Article
104 (1) EPC).For these
reasons it is decided:1. The
appeal is rejected as inadmissible.2. The
appellant shall bear the costs incurred by Respondent II by participating in
the oral proceedings of January 28, 2015In the original German text:

Sie sei nicht einverstanden mit der Interpretation der
Einspruchs­abteilung, dass das Sicherheits­merkmal durch jeden (Hauptantrag),
bzw. die (Hilfsantrag 1), bzw. beide (Hilfsantrag 2) Analysator­bereich/e (5,
6) der Verifikations­elemente verifi­zierbar sei, dass es eine unabhängige
Verifizierung gestatte und dass diese Aussage dahingehend zu interpretieren
sei, dass sie es erlaube, entweder eine sukzessive Prüfung mittels eines jeden
Analysator­bereichs oder entsprechend der ursprüng­lichen Offenbarung eine
Prüfung mittels gleichzeitiger Verwendung beider Analy­satorbereiche
durchzuführen. Dennoch sei im
Hilfsantrag 2, der Begriff "jeden" durch "beide" ersetzt
worden (siehe Beschwerde­begründung "Section 2.1.3 We disagree with the
OD's interpretation that 'the security feature' is veri­fiable by each of the
analyzer areas (5, 6) of the verification elements allows for independent
verifica­tion and that the expression should be interpreted as allowing either
successive examination by each of the analyzer areas in turn, or by concomitant
use of both analyzer areas, as in the original disclosure"; "Section
3.2 We disagree with the OD that replacing 'each' by 'the' in claim 1 has
broadened the meaning of the expression without excluding the interpretation in
2.1.3 of 'by each analyzer area'" und "Section 6.1 We disagree with
the OD that the expression in claim 1 'wherein the security feature (3) is
verifiable by the analyzer areas of the verification elements' is to be
integrated in the same manner as 3.2 and 2.1.3. However, to overcome this
objection of the OD, the word 'each' has been replaced with 'both' in the new
Auxiliary Request 2").

This decision has European Case Law Identifier ECLI:EP:BA:2015:T097213.20150128. The whole decision can be found here. The file wrapper can be found here. Photo by James Cridland, retrieved from flickr